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This regulatory action would establish criteria under section 3(5) of the Employee Retirement Income Security Act (ERISA) for purposes of being an "employer" able to establish and maintain an employee pension benefit plan (as defined in section 3(2) of ERISA) that is a multiple employer retirement savings plan (other than a multiemployer plan defined in section 3(37) of ERISA).

Statement of Need:

Many Americans do not have access to workplace retirement plans, including 401(k)s.  Small businesses are particularly unlikely to offer workplace retirement plans because of high costs and regulatory burdens.  Regulatory changes are needed to make it easier and less expensive for small businesses to offer workplace retirement plans to their employees.  Executive Order 13847, 83 FR 45321, directed the Secretary of Labor to examine policies that would clarify and expand the circumstances under which U.S. employers, especially small and mid-sized businesses, may sponsor or participate in a multiple employer plan or MEP as a workplace retirement savings option offered to their employees, subject to appropriate safeguards.

Summary of the Legal Basis:

The proposal would clarify the statutory definition of employer in section 3(5) of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1002.  This definition includes direct employers and any other person acting indirectly in the interest of the employer in relation to an employee benefit plan, including a group or association of employers acting for an employer in such capacity.  Section 505 of ERISA, 29 U.S.C. 1135, provides that the Secretary of Labor may prescribe such regulations as he finds necessary or appropriate to carry out the provisions of this title.

Alternatives:

The Department intends to conduct an assessment of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, which are identified by the public, in order to conclude why the planned regulatory action is preferable to the identified potential alternatives.

Anticipated Costs and Benefits:

The Department intends to conduct an assessment of costs and benefits anticipated from the regulatory action together with, to the extent feasible, a quantification of those costs and benefits.

Risks:

This regulatory action is intended to reduce the risk that America’s workers will enter retirement with inadequate financial resources.  Too many American workers, including one-third of those in the private-sector, have no access to workplace retirement plans, burdening them with concerns about their financial futures.  Polling shows that nearly half of all Americans are concerned they will not have enough money to live on during retirement.